SUSTAINABILITY AND ARTICLE 101(1) TFEU collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 85(1) of the Treaty.”13 Similarly, in Wouters, the ECJ held in relation to mandatory bar rules that “not every agreement between undertakings or every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 85(1) of the Treaty. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects. More particularly, account must be taken of its objectives, which are here connected with the need to make rules relating to organisation, qualifications, professional ethics, supervision and liability, in order to ensure that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience (…). It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives.”14 The draft 2022 Horizontal Guidelines introduce the concept of “sustainability standardization agreements”15 and provide a “soft safe harbour” of seven criteria ensuring that a sustainability agreement will not even restrict competition.16 If these criteria are not met, hard factors such as market coverage and mandatory character will determine whether the agreement is caught by Article 101(1) TFEU,17 in which case it can still be justified under Article 101(3) TFEU. In early 2022, the Bundeskartellamt, having already submitted a detailed paper on sustainability and competition to the OECD in 2020,18 ruled on two such sustainability standardization agreements, one of which introduced living wages in the banana sector and the other concerning an animal welfare label. Andreas Mundt, President of the Bundeskartellamt, stated in early 2022: “Competition law does not stand in the way of cooperations for achieving sustainability objectives – on the contrary. Effective competition is part of the solution since sustainability requires innovation, which in turn only emerges in a competitive 13 ECJ, Case 67/96, Albany, paragraph 59 f. 14 ECJ, Case C-309/99, Wouters, paragraph 97. Cf. also ECJ, Case C-519/04 P Meca-Medina, paragraph 14. 15 Draft 2022 HGL, paragraph 561. 16 Ibid., at paragraph 572. 17 Ibid., at paragraph 575. 18 https://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Diskussions_Hintergrundpapiere/2020/ -OECD_2020_Sustainability_and_Competition.pdf?__blob=publicationFile&v=2.
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